Violence on the Brain: a Critique of Neuroscience in Criminal Law

Is there such a thing as a criminally “violent brain”? Does it make sense to speak of “the neurobiology of violence” or the “psychopathology of crime”? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances? Current research in law and neuroscience is promising to answer these questions with a “yes.” Legal scholars working in this area claim that we are close to realizing the “early criminologists’ dream of identifying the biological roots of criminality.” In the grip of a “neuroeverything” craze, legal scholars, practitioners, and lawmakers have already begun incorporating new “neurolaw” into criminal adjudications, lawmaking, and criminal law scholarship. These breathless hopes for a neuroscientific transformation of the criminal law, although based in the newest research, are part of a very old story. Criminal law and neuroscience have been engaged in an ill-fated and sometimes tragic affair for over two hundred years. Two failures have appeared in current work that mirror precisely the prior failures. First is the claim is that the various phenomena we call “criminal violence” comprise a single entity, which arises causally from dysfunction within specific locations in the brain (“localization”). Second is that violent crimes are committed by people who are essentially biologically different from typical people (“otherization”). This Article first demonstrates the parallels between current neurolaw claims and past movements in law and neuroscience: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a scientific critique of the shortcomings of current neurolaw claims about the neurological bases of criminal violence. Drawing on research and interviews with leading neuroscientists, this Article shows that causally localizing what we call “criminal violence” to bits of the brain is highly scientifically contestable and epistemologically untenable. In viewing the criminal law-neuroscience relationship through the lens of history of science, this Article hopes to offer caveats to legal users of “neurolaw” and a realistic and constructive portrait of how current neuroscience might inform criminal law discourse about regulating violence. ∗ Climenko Fellow & Lecturer on Law, Harvard Law School; visiting fellow, Department of History & Philosophy of Science, University of Cambridge. I thank Yochai Benkler, Martha Minow, Bill Stuntz, Jed Shugerman, Matthew Stephenson, and Michele Beardslee for invaluable advice and comments on drafts. My thanks, also, to the participants in the Climenko Workshop series. Within the sciences and history of science, I am deeply grateful for advice and comments from Drs. Stephan Chorover, Yoky Matsuoda, and John Forrester. Luke Frankson and Julie Ruderman provided valuable research assistance on this Article.